Marsy's Law amendment hanging by a thread as election nears

The unprecedented, multimillion-dollar campaign to pass a referendum to include victims’ rights in the Pennsylvania Constitution is hanging by a legal thread, even before voters head to the polls Tuesday.

The amendment, known as Marsy’s Law, has percolated through the General Assembly for two years. It passed the Legislature by large margins in two consecutive sessions and was on track to become law with voter approval. That was until Wednesday, when Pennsylvania Commonwealth Court Judge Ellen Ceisler put it on hold.

The referendum will remain on the ballot, but Ceisler barred officials from certifying votes on the measure, pending a final ruling on a challenge filed by the League of Women Voters of Pennsylvania. Lawyers from the American Civil Liberties Union of Pennsylvania argue that the proposed change — which enumerates a variety of rights — fails to meet the state constitutional requirement that limits amendments to a single issue.

The case is now before the state Supreme Court after Pennsylvania Attorney General Josh Shapiro appealed Ceisler’s injunction. Shapiro maintains that the referendum meets constitutional muster and said barring a vote count could suppress balloting on the referendum and hurt voter turnout.

Jennifer Riley, director for Marsy’s Law for Pennsylvania, said the organization is joining Shapiro’s appeal.

The Supreme Court ordered lawyers to file written arguments by close of business Friday.

A brother’s crusade

Legal arguments about Marsy’s Law are nothing new.

The measure is part of a national campaign that California tech billionaire Henry J. Nicholas III is underwriting to codify victims’ rights in every state constitution, with the goal of eventually amending the U.S. Constitution.

Nicholas established the Marsy’s Law for All Foundation in memory of his sister, Marsalee Nicholas. As a California college student, she was murdered in 1983 by a former boyfriend. Nicholas began his push for victims’ rights after his mother encountered Marsalee’s murderer in a grocery store a week after her daughter was killed. She did not know he had been released on bail.

Among other things, Marsy’s Law requires that crime victims be notified of an offender’s release and given standing in court for proceedings including bail hearings, parole and trials. While many of those issues are part of the Pennsylvania Crime Victim’s Act of 1998, advocates say the amendment would give victims standing to demand that those rights are upheld.

Nicholas, 60, the co-founder of Broadcom Corp., did not return a call seeking comment.

Known for his work in youth charities and victims’ advocacy, he made headlines in September when he agreed to donate $500,000 to charity and attend drug counseling as part of a no contest plea to drug possession charges in Las Vegas. Forbes magazine estimates Nicholas’ net worth at $4.4 billion.

He has put his money behind his campaign in state after state.

According to campaign finance reports, the Marsy’s Law Foundation has spent more than $100 million in 12 states over the past 11 years since passing the first crime victims’ rights amendment in California in 2008.

Voters in 11 states have passed similar amendments. Courts in Montana and Kentucky later overturned the measure in those states.

Campaign finance records in Pennsylvania show the Marsy’s Law Foundation had committed $6.4 million — both in cash and through in-kind contributions — to the campaign here as of Oct. 23.

High-profile support

In what one expert in state constitutional law called an unprecedented campaign for an amendment, Marsy’s Law for Pennsylvania has blanketed airwaves across the state with a 30-second ad featuring Emmy Award-winning actor Kelsey Grammer.

The same ad has appeared in several states, including North Carolina and Florida.

In it, a stony-faced Grammer says that his father was murdered at age 38 and his sister was later raped and murdered when she was 18. He says he learned from the National Enquirer that his father’s killer was released. He urges voters to support Marsy’s Law to give victims a voice.

Riley said the organization will continue to air the ad through Election Day.

“Kelsey Grammer is deeply committed to the victims’ rights cause and has volunteered his time and energy wherever he felt he could make a difference, by sharing his powerful personal story,” she said.

The organization also launched a new ad this weekend touting its various supporters, including Gov. Tom Wolf, U.S. Sens. Bob Casey and Pat Toomey and U.S. Rep. Guy Reschenthaler, R-Peters.

Locally, Allegheny County District Attorney Stephen Zappala filed a court petition to intervene in support of the amendment last week.

Pennsylvania State Victim Advocate Jennifer Storm said the amendment would give victims standing in court to assert their right to be heard and notified of proceedings. She equated it to balancing the scales for victims.

Civil rights advocates, however, fear it could trample on the rights of those accused of crimes prior to any conviction.

“This ruling reaffirms the importance of following the constitution,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Despite the heated rhetoric, rather than help crime victims, the Legislature failed them in this process. They did not hold a single hearing over two legislative sessions, and they ignored the law in proposing this massive constitutional amendment. They knew better, and they should have done better.”

In decades of teaching and writing about the Pennsylvania Constitution, Duquesne University law professor Bruce Ledewitz can’t recall anything like the ad campaign surrounding Marsy’s Law.

He said constitutional amendments typically become law if they make it to the ballot. He called the pricey ad campaign “unnecessary overkill.”

Although voters likely will approve the referendum, Ledewitz said it will remain for the courts to decide whether it meets constitutional muster.

Victims’ rights advocates, however, aren’t ready to give up the fight.

“Seeking justice for crime victims has always been an uphill battle,” Storm said. “Challenges were, and continue to be, expected.

“Protecting victims’ rights has never been more important than in this moment — and the ability to act has never been in the hands of citizens like it is right now.”

Opponents of the amendment are just as committed to striking it down.

“From the start, this case has not been about victims’ rights, but about protecting the rights of Pennsylvania voters. … When constitutional requirements are skirted, even for good reasons, every one of us suffers,” said Steven Bizar, a partner at Dechert LLP and member of the legal team challenging the amendment.